Through the instant criminal appeal under Section 417 (2-A) of the Code of Criminal Procedure, 1898 ("Cr.PC"), the appellant, Zafar Mehmood, impugns the judgment dated 29.02.2024 passed by the learned Judicial Magistrate, Islamabad (East), whereby the accused / respondent No.1 was acquitted from the charge on the basis of F.I.R. No. 223/19, dated 25.05.2019 under Section 489-F of the Pakistan Penal Code, 1860 ("PPC"), which was registered at Police Station Koral, Islamabad, on the complaint of the appellant.
2. Learned counsel for the appellant submitted that the impugned judgment was passed without taking into account the incriminating evidence brought on record; that on the basis of the evidence on record, it was proved that in discharge of a financial liability, respondent No.1 dishonestly issued the cheques which were dishonoured by the Bank; that the charge against the accused was proved from every aspect; that learned trial Court selectively examined the statements of prosecution witnesses and not in wholesome manner; and that as against the statement of the accused under Section 342 Cr.PC, there was no endorsement on the cheques or any other evidence to prove that the cheques in question were issued as guarantee.
3. Learned counsel for the appellant further submitted that issuance of the cheques was established through evidence and the accused did not produce evidence to show that he had made an arrangement with the Bank for making payment against the said cheques therefore, he cannot be absolved from liability of dishonest issuance of the cheques; that the learned trial Court's observation with regard to non-mentioning the date of issuance of the cheques are not apt because an occurrence of the offence under Section 489-F PPC takes place on the date when the cheque is dishonoured; that the appellant had produced witness from the Bank where he deposited the cross cheques for withdrawal; that the appellant's suit under Order XXXVII CPC for recovery against respondent No.1 for same cheques mentioned in the F.I.R. has been decreed; that if the cheques in question had not been issued for discharge of a liability why respondent No.1 / accused did not institute a suit for cancellation of the cheques nor did he initiate any other legal proceedings; that where the issuance of cheques and signature thereon are proven the holder of the cheques is not required to prove consideration; and that the impugned judgment is contrary to rinciples of weighing the evidence in criminal justice system. Learned counsel for the appellant prayed for the appeal to be admitted and for respondent No.1 to be convicted.
4. I have heard the contentions of the learned counsel for the appellant and have perused the impugned judgment with his able assistance.
5. The record shows that the initial version of the appellant in the F.I.R. was that he had lent Rs.20,000,000/- to respondent No.1 and his son for the purchase of land and when respondent No.1 failed to return the said amount on the appellant's asking their tribal elders intervened whereafter in September, 2018 respondent No.1 issued four cheques each , amounting to Rs.5,000,000/- which could not be encashed on presentation after respondent No.1 with malafide intention issued stop payment instruction to issuer Bank.
6. The charge against respondent No.1 was framed on 16.12.2019. From the prosecution's side appellant, Zafar Mehmood, Muhammad Zubair, ASI and Ameer Ahsan, Operations Manager of Alflah Bank appeared as witnesses. Additionally, the prosecution also produced Sultan Mehmood, Inspector, Salamat Ali, Constable in evidence of proceedings under Section 87 Cr.PC. In his statement under Section 342 of Cr.PC, respondent No.1 denied charges against him and stated that he never had any business relations with the appellant instead he had issued the said cheques in blank form to the brother-in-law of the appellant, namely Muhammad Taj as security for a payment which cheques were further given to the appellant by the said Muhammad Taj. The learned trial Court acquitted the accused mainly because the prosecution failed to prove the essential constituents for the offence under Section 489-F PPC and the version of the prosecution suffered from doubts.
7. Respondent No.1 s stance that he had not issued the cheques in question to the appellant, and that he had no financial relationship with the appellant, necessitated that the appellant should have produced evidence of the obligation for discharge of which the cheques were issued. I say so because to constitute an offence under Section 489-F PPC, following three ingredients have to be there:- "(a) Cheque issued with dishonest intention;
(b) Cheque should have been issued towards repayment of a loan or fulfillment of an obligation; and,(c) The Cheque is dishonoured on presentation."
8. To bring the dishonoured cheques within the ambit of Section 489-F PPC, they should have been issued for the fulfillment of an obligation, or repayment of loan. In the present case, the appellant made absolutely no effort to prove the existence of an obligation for discharge whereof, respondent No.1 issued the cheques for an amount of Rs.20,000,000/-. The learned trial Court was not at fault in observing that lending such an amount without reducing the transaction into writing does not happen in the normal course. During evidence the appellant stated that he paid the amount to respondent No.1 in cash and that most of said cash he had taken from his home while some of it he withdrew from his bank account. The appellant did not produce evidence to show his financial means or the withdrawal receipts of the Bank or any other evidence to substantiate his claim of cash payment. In short, the appellant did not produce any proof of transaction that resulted in the obligation for which respondent No.1 had to issue the cheques in question. Now, the mere possession or issuance of cheques was insufficient for convicting an accused, instead the said cheques were to be backed by certain obligation or a loan, which is missing in the present case. After the accused / respondent No.1 denied having a business transaction with the appellant, heavy burden lay upon him to discharge the onus of proof completely, which he had failed to do.
Additionally, the cheques in question were to be drawn on Meezan Bank and since it was a case in which the accused had issued a stop payment direction, the learned trial Court has rightly observed that it was obligatory for the prosecution to have produced a witness from the issuer's Bank to have explained the nature of stop payment direction. In the absence of such vital evidence, the presumption goes against the appellant for withholding the said evidence. All these aspects have not been disputed in the instant appeal. Now, no exception can be drawn with regard to the learned trial Court's observation that the appellant was unable to prove the essential ingredients which constitute an offence under Section 489-F PPC.
9. All these discrepancies in the prosecution's evidence are not trivial because in criminal parlance standard of proof is higher. The prosecution is bound to establish the case against the accused beyond any shadow of reasonable doubt; the evidence should not only be confidence inspiring but also trustworthy. A conviction cannot be recorded on suspicion no matter how strong or grave that suspicion might be. The Hon'ble Supreme Court in the case of Muhammad Ashraf Vs. The State (2016 SCMR 1617) had reiterated that "suspicion howsoever grave or strong could never be a proper substitute for standard of proof required in criminal cases i.e. beyond reasonable doubt."
10. The standard of proof to be beyond reasonable doubt is intricately connected with presumption of accused's innocence. The expression beyond reasonable doubt' on one hand requires that the doubt which had been made basis for disbelieving the prosecution's evidence should be reasonable while on the other hand it also requires that there should not be a lack of evidence or discrepancy in the prosecution's evidence before a conviction is handed down against the accused. In the case of Muhammad Asghar alias NANNAH Vs. The state (2010 SCMR 1706), the Hon'ble Supreme Court held that as under; "9. Thus the proof beyond a reasonable doubt should be based on reasons and commonsense, which must be logically based upon the evidence or lack of evidence, however, it cannot be based on sympathy or prejudice, or be imaginary or frivolous. Nevertheless, the prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved. Proof beyond a reasonable doubt does not mean proof beyond all doubts. The law does not require absolute certainty on the part of the Court before it returns a verdict of guilty. The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of Judges, as reasonable men reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted, even if the Court/Judge believes that the accused is probably guilty or likely to be guilty, that is not sufficient. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.
Reference is invited to (State v. Ryerson, 201 Conn. 333, 342 (1986), (State v. Hires, 243 Conn 796, 820 (1998) and (State v. Denson, 67 Conn, App 803, 802-22 (2002). Thus, if the Judge is sure, on the evidence produced by the prosecution that the accused has committed the offence, then he should be convicted as it shows that, the Judge is satisfied of guilt of the accused beyond a reasonable doubt."
11. The upshot of the above discussion is that the impugned judgment does not suffer from misreading or non-reading of evidence. Therefore, the present appeal is without merits, which is thus dismissed in limine.